What is a Legal Application?
A legal application refers to the form of the court procedure used to resolve a legal dispute. An application differs from a legal action. An action is the standard legal process that most people are familiar with. While an action concludes with a trial before a judge with live witnesses, an application is determined at a hearing before a judge with no live witnesses. More information on a legal action, is outlined in my blog post, Going to court: Navigating commercial litigation in Ontario.
An application is best used when the dispute involves the interpretation of a contract or where there are minimal disputed material facts. If the judge can resolve the case based on documents, instead of witness testimony, an application may be a good procedural option because it is usually faster and cheaper than an action.
The Steps in a Legal Application
- Application record
The applicant will serve their application record on the respondent. The application record states what the applicant wants the court to order and the evidence to support their request. The evidence is provided in an affidavit with supporting documents attached as exhibits. The responding party will then provide their application record. Sometimes, the responding party will bring a cross-application against the applicant for different relief (i.e., a counterclaim). - Court ordered timetable
After the applicant has served the respondent with their application record, the parties must attend court to schedule the steps in the application process, including the hearing date.For the applicant, this is beneficial because the timetable creates court ordered deadlines for each step, including the final court hearing date. An action rarely has court ordered deadlines, which makes it easier for the defending party to delay the legal process. - Cross-examinations
The witnesses who swore affidavits will then be cross-examined on their affidavits. Non-party witnesses may also be cross-examined. If a witness refuses to answer certain questions, further court attendances may be necessary to have the refused questions answered, depending on the importance of the question. - Written legal arguments
The applicant and respondent each submit factum documents that argues their position by applying legal principles to the evidence. The facta, and all other material relating to the application, is filed so the judge has it before the court hearing. - Court hearing
The applicant and respondent attend court to argue their position. In 2023, that usually happens virtually. The parties are encouraged to attend to observe the hearing. Usually within three months of the hearing date, the judge will issue a written decision.
An application usually takes six to twelve months, subject to the complexity and volume of the application record. This time can vary significantly depending on the nature and urgency of the dispute.
Settlement
A settlement can happen at any time. Many applications settle before they are argued in court. However, because settling is unpredictable, the applicant should presume the application will be argued in court.
Cost recovery
In Ontario, generally, the successful party in a legal action usually recovers 50% of their legal fees from the loser. Costs are always at the court’s discretion.
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If you have questions about the information discussed in this article or require help with any other business litigation matters, please contact me at [email protected] or any lawyer in our Commercial Litigation department.